In the Matter of the Complaint Against:

CECILY VANE,
GPO Box 239 at
Boston, Massachusetts 02101

P.S. Docket No. 4/129

02/12/76

Sobernheim, Rudolf, Administrative Law Judge

APPEARANCES:
Daniel S. Greenberg, Esq.
Consumer Protection Office,
Law Department, U.S. Postal Service
Washington, D.C. 20260, for Complainant

Albert L. Hirsey, Owner,
310 Marlborough Street,
Boston, Massachusetts 02116, for Respondent

INITIAL DECISION ^1/

This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent upon evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that respondent is engaged in such scheme in the sale of a pamphlet, called "New Miracle Bustline Plan", published by respondent. Specifically, complainant in paragraphs (2) and (3) of the complaint alleges that by means of an advertisement, a copy of which is attached to the complaint, respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, and materially falsely so:

"(a) That Respondent's unnamed plan will 'transform [a] flat bustline into bigger, tauter, shapelier measurements', i.e., that the plan will:

(i) increase the size of the female breast;

(ii) Firm sagging breasts;

(iii) increase the bustline;

(b) That most users can expect the following increases in bustline measurement;

(i) 1 inch in 1-3 days;

(ii) 2 inches in 4-6 days;

(iii) 3 inches in 6-10 days;

(iv) '4, 5, 6 inches added easily at incredible speed';

(c) That a significant proportion of the increases enumerated in subparagraph (b), supra, will be in the size of the breast;

(d) That Respondent's plan provides a new and different approach to achieving the results enumerated in subparagraphs (a) through (c), supra."

Respondent, by implication, generally traversed the allegations of the complaint and stated that it would attend the hearing set in this proceeding. At the hearing the parties stipulated that respondent used the mentioned advertisement to solicit orders for its product (T 3-4), to wit: the pamphlet a copy of which was admitted in evidence as complainant's Exhibit 2 (T 5). At the end of the hearing both parties presented oral argument and the presiding administrative law judge thereupon rendered his decision.

FINDINGS OF FACT

1. CECILY VANE, a business conducted by Albert L. Hirsey of Boston, Massachusetts who at the hearing held herein testified that he resided on Main Road, Hancock, Massachusetts 01237, solicits orders for its "fantastic consumer-protected new miracle bustline plan" by means of an advertisement showing a three-quarter head and torso view of an attractive woman, clad only in a brassiere and showing clearly the fullness of her breasts and reading as follows:

FLATCHESTED? DON'T GIVE UP] FANTASTIC CONSUMER-PROTECTED NEW MIRACLE BUSTLINE PLAN INCREASES BUST- LINE 5, 6 INCHES] Feel like weeping? You tried expensive methods & nothing worked? Don't blame mother-nature] Here is your first, consumer-protected, wildly successful, no-nonsense, ALL NEW approach to real, full, firm, big pectoral inches in years] You can expect: 1 inch 1-3 days; 2 inches 4-6 days; 3 inches 6-10 days] 4, 5, 6 inches added easily at incredible speed]

No cream, no artificial stimulator, this incredible plan is all you need for permanent, eye-catching contours. A low-priced miracle approach guaranteed to transform flat bustline into bigger, tauter, shapelier measurements with out consumer-protected plan or money back] Truly fantastic] Only $2.95 & 25 handling. Sent in plain wrapper. No CODs.

CECILY VANE: GPO Box 239-L, Boston, Ma. 02101

Name

Address

2. Respondent's advertisement states the price for the "plan" as $3.20, states that it will not send it C.O.D. (thus requiring payment in advance) and promises mailing in a plain wrapper.

3. Those who respond to respondent's advertisement and send the required price receive a 20-page pamphlet, approximately 4 x 5 1/2 inches in size, which sets forth the "New Miracle Bustline Plan". The plan consists of a series of eight exercises, performed either standing or lying down and while the subject presses an ordinary rubber ball, two or three inches in diameter, between her hands. The pamphlet's author recommends that in order "to achieve maximum results improving the size, shape and contour of [one's] bustline" the exercises be performed week-in, week-out at least three times per week on alternate days or six times per week for faster results.

4. Respondent's advertisement and pamphlet both avoid the use of the word "breast" and use the word "bustline" to describe the bodily feature to be enlarged by following the "plan". They do not, however, explain the meaning of "bustline" and the advertisement with its picture of a semi-nude woman displaying shapely breasts calls the reader's attention to the size and contour of the breast as distinct from whatever chest measurements "bustline" may refer to. Moreover, the advertisement's reference to "full, firm, big pectoral inches" creates ambiguity since the adjective "pectoral" can refer either to the breast or the chest. WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE (Coll. ed., 1960), s.v. "pectoral".

5. The Director of the Department of Physical Medicine and Rehabilitation of The George Washington University Hospital, who is also Professor of Medicine at the University's Medical School as well as a practising physician in the field of physical medicine (T 9-10, 12), testified that many women come to consult him about the physical appearance of their upper bodies and that whatever they talk about, whether it be "bustline", "breast" or any other words, what they seek is an increase in the breasts themselves (T 13 et seq.).

6. On the basis of the illustration and language of respondent's advertisement and the known concern of women seeking bigger, shapelier breasts, not bustlines, I find as a matter of fact that respondent's advertisement represents to the ordinary reader that her breasts themselves and not her bustline or underlying muscles will gain the inches and increased size and shapeliness which respondent represents in its advertisement that the purchaser of its plan will gain.

7. The language of respondent's advertisements contains the representations which the complaint charges respondent with making, whether such representation refers to bustline or breast with one exception noted below. I find accordingly the respondent makes the representations which the complaint charges.

8. In formulating its charges complainant referred to respondent's plan as "unnamed" (Compl., par. (2)(a)). As the record shows the plan of respondent bears the name of "New Miracle Bustline Plan". The erroneous reference to the "plan" does not, however, affect the substance of respondent's representations or the charges based thereon by complainant.

9. The undisputed testimony of the medical expert witness called by complainant, whose high qualifications are spread on the record and have already been set forth herein, establishes that exercises such as respondent's plan proposes may at most increase the bustline by up to one-quarter inch over a period of about six months (T 17-18, 20-21) by enlarging the chest muscles underlying the breasts and that no such exercises will enlarge the breasts themselves since they lack muscles, or make them firmer or shapelier (T 17, 19). The most that physical exercise can do is to improve the subject's posture and limberness. Only endocrinology can provide modification to enlarge or firm the breast (T 15, 16).

10. The witness also testified that there was nothing new in the exercises proposed by respondent (T 36 et seq.).

11. It does not detract from the weight of the testimony of complainant's expert witness that he had not tried out respondent's plan before testifying in this proceeding (T 28-9, 34), arrived quickly at his conclusions or did not have exact knowledge of each and every similar "plan". In arriving at the conclusions summarized in Findings of Fact 9 and 10 the witness could and did rely on his knowledge of physical medicine (T 26) to reach his conclusions in conformity with accepted medical opinion (T 24).

12. Based on the foregoing detailed Findings of Fact and the record as a whole I find that respondent's representations, charged in paragraph (2) of the complaint and hereinabove found to have been made are false in fact.

a. Respondent's plan will not increase the size of or firm sagging breasts or increase the bustline as represented by respondent (Compl., par. (2)(a)).

b. Respondent's plan will not increase the bustline by one or more inches in a matter of days or within any time (Compl., par. (2)(b)).

c. Respondent's plan will not to any extent increase the size of the human breast (Compl., par. (2)(c)).

d. Respondent's plan does not provide a new and different approach to the achievement of the results which it promises (Compl., par. (2)(d)).

CONCLUSIONS OF LAW

1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 USC 3005.

2. Whether directly or by implication, respondent's advertisement makes the false representations as to breasts charged in paragraph (2) of the complaint herein and will be so understood by the ordinary reader. See Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948). These false representations will mislead purchasers of respondent's plan contrary to the intent of 39 USC 3005.

3. The constitutionality of 39 USC 3005 against First Amendment attack is well established even where the proscribed scheme is effectuated through the sale of written or printed material setting forth a method or course of action alleged to produce a given result but which in fact does not do so. For the First Amendment does not protect so-called "commercial speech" when used by way of false representations to induce prospective purchasers of goods or services to part with their money. Valentine v. Chrestensen, 316 U.S. 52 (1942); Lynch v. Blount, 330 F. Supp. 689 (S.D.N.Y. 1971), aff'd mem., 404 U.S. 1007 (1972); United States v. Beamish, 466 F.2d 804 (3d Cir., 1973); United States v. Outpost Development Corp., dba Lydia Feldman Methods, 369 F. Supp. 399 (C.D. Cal. 1973), aff'd mem. 414 U.S. 1105 (1973). As the three-judge court held tersely in the last-cited case:

"Defendant's contention that the advertising advertises a booklet is without merit, for a fair reading of the advertising is to the contrary." (loc. cit., supra, 369 F. Supp., at p. 401).

4. Respondent here is engaged in selling the NEW MIRACLE BUSTLINE PLAN incorporated into a pamphlet, which falsely represents an allegedly practical course of action to attain a desirable goal as a method capable in fact of attaining it. Such activity is not protected by the First Amendment and is subject to the restraint of 39 USC 3005. See Regency Press, P.S. Docket No. 3/62 (1974); Sharon Woodman Associates, P.S. Docket No. 2/122 (1973); Lydia Feldman, P.S. Docket No. 1/202 (1973); Brentwood Research, P.S. Docket No. 1/173 (1973).

5. Parker Publishing Co., P.S. Docket No. 3/80 (1971; order denying reconsideration, 1972), has no application here. For respondent is selling a plan or method claimed to achieve, but incapable of attaining, the advertised end. Such activity does not raise the constitutional question presented by the genuine bookselling activities of a publishing house which the Judicial Officer found protected by the First Amendment. Parker Publishing Co., supra.

6. Accordingly an order as provided in 39 USC 3005 should be issued against respondent.

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1/ This initial decision was rendered orally at the end of the hearing and has been transcribed, edited and amplified for formal issuance to the parties.