In the Matter of the Complaint Against

ORIGINAL COSMETIC PRODUCTS, INC.
P. O. Box 480 and LOVE SONG COSMETIC CORP.
P. O. Box F at
New York, New York 10011

and

LOVE SONG COSMETICS
P. O. Box 498 Cooper Station at
New York, New York 10003

P.S. Docket No. 4/120;

08/23/76

Lussier, Edward F.

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, Esq.
Law Department
United States Postal Service
Washington, D.C.

APPEARANCES FOR RESPONDENT:
Herbert Monte Levy, Esq.
New York, New York

POSTAL SERVICE DECISION

The Respondent identified in the caption above has taken a timely appeal to the undersigned under the provisions of 39 Code of Federal Regulations, Part 952, from the Initial Decision issued by Administrative Law Judge Quentin E. Grant, in which it is recommended that a mail stop order be issued against Respondent to protect the public against various false representations in Respondent's advertising. The case involves nine different products all found by Judge Grant to be falsely represented as effective aphrodisiacs or sexual stimulants.

Respondent's Appeal Brief takes issue with most of the findings that the alleged representations were made and with all of the findings that the representations are false. Respondent also contends that it was denied due process in not being permitted to reopen the hearing for presentation of additional evidence and further that the decision violates its rights under the First Amendment to the U. S. Constitution.

Judge Grant's Initial Decision amply and logically details the basis, in each instance, for his findings that the representations alleged in the complaint are made in fact in the Respondent's advertising material. Respondent has taken each advertisement and attempted in its Brief to negate the alleged representations by offering its view of the proper interpretation to be given to the claims made. The arguments are identical to those made in the Brief filed with Judge Grant. I have carefully considered these arguments. They are, in main, spurious. Judge Grant's findings that the representations charged in the complaint, and set forth in his decision, are made by the Respondent's advertising material, are clearly correct and Respondent's exceptions to those findings are disallowed.

Respondent's exceptions to Judge Grant's findings of material falsity are premised upon what it considers fatal deficiencies in Complainant's proof, attacking principally the competency and credibility of the testimony of Complainant's expert medical witness, Dr. Robert S. Hotchkiss. Both points were raised to Judge Grant who found Dr. Hotchkiss eminently qualified to express the consensus of informed medical and scientific opinion and fully credible in his testimony regarding the issues here involved. My review of the record satisfies me that Judge Grant was correct in this judgment. Respondent's arguments with respect to inconsistencies in testimony and bias are not persuasive in the light of the full testimony. The essence of Respondent's position on the proof is, to summarize the position of its medical expert, Dr. Joseph Edward Davis, that to prove a particular item is not an effective aphrodisiac or sexual stimulant, controlled and expensive experimentation would be necessary over a long period of time, perhaps five to ten years (Tr. 45).

Respondent argues that American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1914), controls in this situation. That case involved the business of teaching the practical science of healing through the exercise of the human mind rather than medicines. It held that there could be found no intent to defraud the public, an element then required, but now excised from the postal false representation law, when there were two prevailing schools of respectable thought on the subject. Commingled with Respondent's contention of prerequisite testing, put amply to rest by the cases cited by Judge Grant in his conclusion of law number 4, and its contention of the "placebo" effect of its products, the argument is seen to be all form and no substance. Nor does Respondent's money-back guarantee make all things whole. See Howard v. Cassidy, 162 F.Supp. 568 (E.D.N.Y. 1958), and cases cited therein. See also Iso-Tensor, P.S. Docket No. 3/30 (1975).

The contention regarding the "placebo" effect merits some comment, however, if for no other reason than that Respondent urges it was a denial of due process for Judge Grant not to reopen the hearing to take additional evidence on that subject. The record in this case shows Respondent was given every opportunity for a full and fair hearing including a number of extensions the effect of which necessarily has prolonged the ultimate decision. Its request to reopen the hearing, made at the time briefs were filed with Judge Grant some seven weeks after the hearing, was to present testimony with respect to the effectiveness of "placebos." Even if it be assumed that Respondent's further evidence would show that with respect to placebo qualities the stronger the representation as to the powers of the item, the stronger will the placebo effect be, there is inherent in the entire argument the existence of false representations. From the fact that a doctor may treat a patient with a placebo, where medically indicated, and attain results therefrom it does not follow that a commercial enterprise may sell a product on the basis of false claims of its effectiveness and justify the practice on the theory that the customer may conceivably thereby overcome a possible psychological obstacle. The tool is deception and deception for profit. This the postal false representation law prohibits. The request to reopen was properly denied and Respondent's exception to that denial is disallowed.

Respondent's First Amendment contention relies upon Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, ____ U.S. ____, 446 LW 4686, decided May 24, 1976. That case, however, is no help to Respondent who contends it should be read to protect "deceptive or misleading" advertising as distinguished from "false" advertising citing page 4693 of the Court's opinion to the effect that "Untruthful speech, commercial or otherwise, has never been protected for its own sake * * *. Obviously much commercial speech is not provably false or even wholly false, but only deceptive or misleading." The very next sentences of the Supreme Court opinion, omitted in Respondent's Brief, state "We foresee no obstacle to a State dealing effectively with this problem. 24/ The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flows cleanly as well as freely." The footnote referenced above goes into greater and equally lucid detail which makes it crystal clear that deceptive commercial advertising cannot seek effective cover under the First Amendment. It is quoted in full here:

" 24 In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does 'no more than propose a commercial transaction' Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. at 385 and other varieties. Even if the differences do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and foregone entirely.

Attributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. Compare New York Times Co. v. Sullivan, supra, with Dun & Bradstreet, Inc. v. Grove, supra. They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings and disclaimers, as are necessary to prevent its being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied, sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Compare United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924) ('It is not difficult to choose statements, designs and devices which will not deceive.') They may also make inapplicable the prohibition against prior restraints. Compare New York Times Co. v. United States, 403 U.S. 713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. V. FTC, 235 F.2d 735, 739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957)."

Likewise Respondent in an effort to raise its advertising claims to constitutional stature quotes Mr. Justice Stewart's concurring opinion out of context to the effect that--

"*** But since it is a cardinal principle of the First Amendment that 'government has no power to restrict expression, because of its message, its ideas, its subject matter, or its content,' the Court's decision calls into immediate question the constitutional legitimacy of every state and federal law regulating false or deceptive advertising."

Mr. Justice Stewart's very next sentence reads "I write separately to explain why I think today's decision does not preclude such governmental regulation." In fact, Mr. Justice Stewart goes on to state at pages 4694-5:

"The principles recognized in the libel decisions suggest that government may take broader action to protect the public from injury produced by false or deceptive price or product advertising than from harm caused by defamation. In contrast to the press, which must often attempt to assemble the true facts from sketchy and sometimes conflicting sources under the pressure of publication deadlines, the commercial advertiser generally knows the product or service he seeks to sell and is in a position to verify the accuracy of his factual representations before he disseminates them. The advertiser's access to the truth about his product and its price substantially eliminates any danger that governmental regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression. There is, therefore, little need to sanction 'some falsehood in order to protect speech that matters.'"

Conclusion

All of Respondent's exceptions to the Initial Decision are found without merit and must be disallowed. The Initial Decision is accordingly hereby affirmed and a remedial mail stop order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.