In the Matter of the Complaint Against

REJUVNIR, INC.
1905 High Place at
Santa Monica, California 90404

P.S. Docket No. 3/105;

01/30/75

Lussier, Edward F.

DECISION ON MOTION FOR RECONSIDERATION

Respondent has filed a Motion for Reconsideration of the Postal Service Decision in the above-entitled case. Its argument on the merits is contained in a brief paragraph which reads as follows:

"Complainant's medical witness did not testify on the contents of the product involved, Dr. Frank's Nutritional Face Creme, or any facts showing that the said product was not effective as claimed. Further, the medical witness, Dr. Carnathan, testified repeatedly that he did not know of any effect of RNA and DNA, testifying to nothing but his lack of information. He admitted that he never tested the said product."

The record is quite clear with respect to the medical opinions offered by Dr. Carnathan and his qualifications to offer such opinions. Those opinions fully support the findings and conclusions in the Postal Service Decision. I find no basis to reverse the findings and conclusions of that Decision.

Respondent's main arguments on the Motion for Reconsideration relate to the mail stop order issued in this case. It objects to the order applying to payment for goods already shipped to distributors and retailers and orders by distributors and retailers for product intended for resale. Respondent also objects to the mail stop order applying to mail relating to multiple products where one or more of the products being ordered is not the product in question in this case. The Complainant's reply to the motion advises that "By agreement between Counsel, the postmaster in Santa Monica, California has been instructed how to handle the orders by distributors and retailers for the product. Complainant agrees that payments for goods already shipped and orders for distributors-retailers not relying upon the representations complained of herein, should be allowed to be received by Respondent; Complainant will work with Respondent to see that such mail is properly delivered". In view of the agreement of the parties the order is so modified. The parties have not advised as to what agreement if any has been worked out on the so-called "multiple order" situations. Consequently, I must assume that no agreement has been worked out.

Respondent also objects to that portion of the mail stop order requiring that mail be returned to senders stamped "Return to Sender; Order Issued Against Addressee for Violation of False Representation Law". It asks instead that the mail be stamped with a stamp which it will furnish reading: "Returned. Dr. Frank's Nutritional Face Creme Not Available By Mail. Other Products are Available By Mail."

39 U.S.C. 3005 expressly provides for an order returning mail to the senders "appropriately marked as in violation of this section". Respondent's requested deviation from the normal stamp placed on envelopes in returning mail to senders in false representation cases does not in any way convey violation of the false representation statute as required by law. Accordingly, Respondent's motion for modification of the order in this respect is denied.

No precedent or practice has been shown for the custom drafting of mail stop orders to make special provision for what might be termed "multiple order" mail. The situation arises when the Respondent opens its mail at the post office, which it expressly permitted to do under the terms of the order within a given period of time, and it is discovered that the letter, or the order, or the remittance involves, or appears to involve, both the product found to be promoted thorough false representations and other products as well. Respondent, of course, is aware in each such instance of the identity of the sender and would be at liberty to take follow-up action on items not involving the product which was the subject of the false representation proceeding. It is not the practice to attempt to explain the particular violation or identify the products involved, the names of which are often, as in the instant case, not brief, presenting practical problems, in size alone, in marking envelopes for return to senders. This is not to say that in a given case and for good cause shown, an order should not be modified where the facts show that it is both in keeping with the ends to be served by the statute and that it is practical to do so. In such instances it would seem incumbent upon the Respondent to show, above the level of allegation, the particular facts justifying a modification to the normal mail stop order. Where such justification is clearly present, it would be expected that the usual and most efficient course of action to pursue would be for Complainant and Respondent to work out mutually acceptable procedures tailor-made to the situation.

In the instant case, the order insofar as it related to the return of mail to senders, was suspended, at the time of the issuance of the Decision on December 20, 1974, as a courtesy to Respondent. Mail has been detained but not returned to senders, awaiting decision on the Motion for Reconsideration in which action the last pleading was filed by Respondent on January 30, 1975. Although sufficient time has passed to develop and present pertinent details, Respondent has pleaded generally an interference with its other business and requested an order obviously not in keeping with the statute. This record does not present a sufficient basis to support modification of the order. Nor is there, in view of the passage of time already incurred, any basis to further delay return of mail to senders.

Respondent originally filed a supplement to its Motion for Reconsideration asking for an order limiting the effect of the mail stop order to 60 days from the date of the final order. It alleged that except for a small quantity for sale to distributors and retailers, not involved with the representations found to be false, it is no longer selling the product in question. Complainant's Response filed on January 23, 1975, indicates it will not oppose such a motion upon the filing of an affidavit personally signed by Respondent that the representations complained of have not been used for a three-month period and verification through the Santa Monica postmaster that no orders are being received; and further upon agreement that the order could be reimposed upon an ex parte showing by Complainant of a resumption of the challenged representations by Respondent. Respondent's request, in specifying a 60-day period, recognized the need for some passage of time to reasonably eliminate delivery of mail connected with the advertisements in question. In a motion filed on January 29, 1975, Respondent withdrew its earlier suggestion of a 60-day period prior to vacation of the detention order and asked for an "immediate vacation, or in the alternative, for a termination of detention on March 1, 1975". Respondent alleges its good intentions and further alleges that it has ceased using representations found to be false and that it does not intend to sell the product in question in the future. It also alleges:

"3. The Postal Service cannot detain and interfere with Respondent's mail in perpetuity. The orders of the said cream have ceased for all practical purposes. There may be a few re-orders but there possibly could be re-orders a year from now because, whether the Postal Service agrees or not, the consumers have found the said cream to be beneficial." (Par. 3, Respondent's Supplemental Motion filed January 29, 1975)

If such is the case, then the order should have little practical effect on the Respondent's future receipt of mail except in isolated instances and a procedure substantially in accordance with that suggested by Complainant for suspension of the order should present no difficulty. Absent such agreement of the parties, a suspension of the order will be dependent upon a showing that the order has completely served its purpose and that the protection to the public afforded thereby should be dispensed with under the circumstances. To order such a suspension at this point of time in this case would be premature.

In view of the above, the Motion for Reconsideration is denied. Supplement A to Order No. 74-88 is dissolved and Order No. 74-88, dated December 20, 1974, is hereby placed into full effect except as modified on page 2 hereof.