In the Matter of the Complaint Against
BEAUTY ORIGINALS, INC.
227 East 45th Street at
New York, New York 10017

and

BEAUTY ORIGINALS, Department 65
65 Wooster Street at
New York, New York 10012

P.S. Docket No. 3/24;

APPEARANCES:

Daniel S. Greenberg, Esq.
Consumer Protection Office
Law Department
United States Postal Service
Washington, D.C. 20260
for Complainant

Bernard G. Ehrlich, Esq.
299 Broadway
New York, New York 10007
for Respondent

POSTAL SERVICE DECISION

The subject case is before the undersigned on appeal by Beauty Originals, Inc., the Respondent, from the Initial Decision of Administrative Law Judge Rudolf Sobernheim which concluded that Respondent is engaged in "a scheme or device for obtaining money or property through the mail by means of false representations" within which the meaning of, and contrary to, title 39 United States Code, § 3005. This appeal, taken under § 952.25 of the applicable Rules of Practice for such cases, lists various exceptions to the Initial Decision in both the findings of fact and the conclusions of law. Complainant has filed no exceptions to the Initial Decision. By stipulation of the parties at the hearing (Tr. 136) the decision in this case also applies to the address Beauty Originals, Department 65, 65 Wooster Street, New York, New York 10012, for the product in question.

Respondent's exceptions to Judge Sobernheim's findings of fact deal principally with his findings regarding the substance of the representations made in Respondent's advertising and the reliance upon the testimony of Complainant's medical expert. Respondent contends that Judge Sobernheim's findings on the representations made in its advertising are invalid in the absence of lay testimony supporting his conclusions. Respondent has given no basis in law, in fact, or in argument, to support that contention and the cases are legion in which the trier of fact is called upon to apply the test of Donaldson v. Read, 333 U.S. 178, without resort to lay testimony. This contention must, therefore, be rejected and Judge Sobernheim's findings on the extent and nature of the representations made in Respondent's advertising are upheld. Respondent takes exception to the findings in paragraph 8 of the Initial Decision with reference to the opinion testimony of Complainant's medical expert to the effect that he knew of no substance which, when applied externally to the face, would fill in the deeper lines, wrinkles or folds and that he did not find in Respondent's product any substance which would do so. Multiple bases are given for this exception. One is that the opinion was based upon an analysis of the product by a government chemist which on the basis of the total record Judge Sobernheim found inaccurate. This is true as to the initial testimony at the hearing but in a post-hearing affidavit submitted in rebuttal to an affidavit of Respondent's medical expert the opinion was reconfirmed on the basis of the ingredients claimed by Respondent to be the active ingredients. The witness' qualifications as an expert are well established on the record and his testimony is based upon the consensus of medical opinion. Based upon all these facts the testimony relied upon by Judge Sobernheim was a proper basis for his findings. The cases cited by Respondent for the proposition that expert opinion evidence must conform to the facts are inapposite here. Respondent further objects to the acceptance of this expert opinion evidence in the absence of the witness having conducted tests of the product but gives no legal basis for such a requirement and none is perceived. In addition, as found in the Initial Decision, Complainant's medical expert did conduct a limited test of the product by application to his skin. I consider Judge Sobernheim's findings of material falsity supported by the record.

Respondent's exception to the Initial Decision on the ground that that was no proof of intent to deceive was considered by Judge Sobernheim, and properly rejected on sound legal basis cited in his last conclusion of law. Further discussion or citation to authorities is, therefore, not necessary. Respondent's exceptions to the Initial Decision are denied and the Initial Decision is hereby affirmed. Accordingly, a remedial order pursuant to 39 U.S.C. § 3005 is being issued contemporaneously with this decision.

06/26/75

Lussier, Edward F.