In the Matter of the Complaint Against:

SEAN MICHAELS,
1210 66 Street - North at
St. Petersburg, FL 33170

P.S. Docket No. 5/16

Grant, Quentin E.; Administrative Law Judge

Thomas A. Ziebarth, Esq.
United States Postal Service
Washington, D. C., for Complainant

Jack Paller, Esq.
Atlanta, Georgia, for Respondent

Before: Quentin E. Grant, Administrative Law Judge

INITIAL DECISION

Complainant initiated this proceeding on May 28, 1976 by filing a complaint alleging that respondent, Sean Michaels (also spelled Micheals) is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005. The complaint also alleges that attention is attracted to said scheme by means of advertisements appearing in publications of general circulation which are calculated to induce readers thereof to remit money or property through the mails.

Referring to such advertisements, the complaint further alleges that by means of such materials, and others similar thereto, respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that:

"(a) The SEAN MICHAELS BUST EXPANDER will increase the size of the female user's breasts;

"(b) The SEAN MICHAELS BUST EXPANDER will cause an average increase in the female user's bustline measurements of 3 1/2 inches in 14 days ... 5 inches in 21 days;

"(c) The SEAN MICHAELS BUST EXPANDER will cause the female user's breasts to become rounder, higher and firmer;

"(d) The SEAN MICHEALS BUST EXPANDER is a new invention utilizing a principle called 'pectoral isolation' which 'more or less isolates the bustline areas that most need improving' and which differs substantially from other so-called bust developers; and

"(e) The advertised results described above will be achieved by using the SEAN MICHAELS BUST EXPANDER for three minutes per day or less."

Finally the complaint alleges that the foregoing representations alleged are materially false as a matter of fact.

Respondent denies all the foregoing allegations except that set forth in "(d)" which it admits. It denies, however, that such representations are materially false.

With respect to the allegation in "(a)", above, respondent takes the position that each of its advertisements affirmatively states that "the Sean Michaels Bust Expander, when used as directed, will increase the female user's bustline, which by definition would include as a part, the female breasts, but as the breasts constitute only a part of the whole bustline, Micheals asserts that a fair and pedestrian reading of the ad *** could not restrict the bustline to mean only the female breasts."

With respect to the allegation in "(b)" above, respondent bolsters its denial by pointing to the following statement contained in each advertisement:

"As you know, I don't claim that everyone who uses the SEAN MICHEALS Bust Expander will achieve the same results as you did, the fact is, some may do better and some not as well."

A hearing was held in Washington, D. C. on July 16, 1976 and in Atlanta, Georgia on August 4, 1976 at which the parties presented evidence. Each party was submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Complainant placed in evidence four examples of respondent's advertisements for the product involved in this matter, the "Sean Michaels Bust Expander" (hereinafter sometimes called the "product"). CX-1A, B, C, D.

2. By means of these advertisements respondent seeks the remittance of money through the mails for the product (Tr. 12).

3. The product (CX-2A) is a device consisting of a closed loop of elastic surgical rubber tubing with two plastic handles. It is accompanied by an instruction booklet describing various exercises designed to be performed with the product (CX-2B).

4. Attached hereto as Exhibit A is a typical example of one of respondent's advertisements in evidence (CX-1C).

5. Based on the "before and after" pictures contained in Exhibit A and the other advertisements in evidence together with the following portions of the text of such advertisements, I find that respondent makes the representation alleged in paragraph 3(a) of the complaint:

From CX-1B

"I THOUGHT I WOULD ALWAYS BE FLAT-CHESTED"

"They thought I was wearing a padded bra ***"

"***I could feel my bust getting rounder, higher, firmer."

"***I feel more like a woman and I don't have to wear padded bras to look like one."

"***Your bustline will become rounder, firmer, fuller and more lift and added inches ***"

From CX-1C

"Being Flat-Chested is No Fun"

"*** the kind of bustline I had envied in other girls."

"*** my bust got rounder and fuller."

"I've had so many compliments from friends that knew me when I was flat-chested."

"I used to wear padded bras to look feminine, now not only don't I need a padded bra, but I look just as good whether I am wearing a bra or not, and believe me, that makes me feel more like a woman"

"--your bustline will become rounded, firmer, fuller***"

6. Although the term "bustline" in the context of patterns for female garments means, as established by respondent's evidence, the measurement around the body at the fullest part of the bust, high under the arm and straight across the back (Tr. 233; RX-9), in the context of respondent's advertisements the term "bustline" is obviously designed to convey the meaning "breast."

7. Based on the following portions of respondent's advertisements, I find that respondent represents that use of the product will cause an average increase in the female user's bustline measurements of 3 1/2 inches in 14 days to 5 inches in 21 days:

"I gained 5 amazing inches in my bustline in only 21 days."

(CX-1C)

"*** I guess you could say I gained 5 inches in my bust in a little over an hour***" (CX-1C)

"*** I gained a full 3 1/2 in my bustline in only 14 days with Sean Micheals Bustline Expander" (CX-1B)

"Not just permanent but fantastic and the 3 1/2 inches was just the beginning. I kept using your Bustline Expander and gained more and more inches, until I achieved the super results I have now. What I thought was an impossible dream became real in a few short weeks. It was simply amazing." (CX-1B)

"***I know other girls I've recommended your Bustline Expander to that are using it regularly and achieving in most cases equally as fantastic results." (CX-1B)

Furthermore, the above-quoted portions of CX-1C and CX-1B are located in such proximity to the "before and after" pictures as to convey the impression that the represented gains in inches were in the breast.

8. Based on the following portions of respondent's advertisements, I find that respondent represents that use of the product will cause the female users breasts to become rounder, higher, and firmer:

"***from the first day I could feel my bustline becoming firmer and fuller, it was like a miracle" (CX-1C)

"***everytime I used your bust expander, my bust got rounder and fuller." (CX-1C)

"I make this guarantee - your bustline will become rounder, firmer, fuller, have more lift and added inches all to your satisfaction within 15 days or all your money will be refunded" (CX-1C)

CX-1B contains an almost identical guarantee.

"***and by the third day it seemed everytime I touched your Sean Micheals Bustline Expander I could feel my bustline getting rounder, higher and firmer" (CX-1B)

9. The following portions of respondent's advertisements make the representation that the product is a new invention utilizing a principle called "pectoral isolation" which "more or less isolates the bustline areas that most need improving" and which differs substantially from other so-called bust developers:

"We had the advantage of time to discover a better method of bustline development. Most competitive bustline developers use the same principle. Whereas my expander uses what I call pectoral isolation my new invention more or less isolates the bustline areas that most need improving." (CX-1B)

"By using a method we call pectoral isolation, we have been able to come up with a new invention *** it is an original exercisor that approaches the problem in almost the exact opposite direction of other bust builders." (CX-1C).

10. In the following portions of respondent's advertisements I find the representation that the advertised results will be achieved by using the product for three minutes per day or less:

"***and actually it took me less than three minutes a day to use your Bustline Expander." (CX-1B)

"All you do is use my bustline expander 3 minutes a day till you have achieved your desired results." (CX-1B). CX-1C contains an almost identical guarantee

"It actually took me less than 3 minutes a day to use your bust expander, so I guess you could say I gained 5 inches in my bust in a little over an hour with your bust expander." (CX-1C).

11. Based on the high value our society places on physical appearance and the resultant deficiency women generally feel if their breasts are not--as "round, high and firm" and of a size matching those of female entertainment figures or models who attract a large amount of male interest, I find that advertising representations such as those of respondent which in effect claim that a product will remedy such "deficiencies" quickly, completely, and with minimal effort are material.

12. Complainant's expert witness, Dr. Mahmound Mourad, and respondent's expert witness, Dr. James T. Cooper, agreed, in testimony, that the use of respondent's product will not increase the size of the female user's breasts. The underlying reason for this conclusion is that only muscular tissue is affected by exercise and, because there are no muscles in the breasts to be exercised, no amount or kind of exercise can affect the size of the breast (Tr. 19, 284).

13. According to Dr. Mourad, a highly qualified specialist in physical medicine, two of the three exercises prescribed in the pamphlet accompanying the product involve either no, or an insignificant amount of, use of the pectoralis major muscle, the major muscle underlying the breasts in the thoracic region (Tr. 31-38). Dr. Mourad testified that a properly designed program of vigorous exercise followed faithfully eight hours a day for two to three years might double the thickness of (hypertrophy) the pectoralis major. Dr. Mourad testified that the thickness of the pectoralis major in the female is generally a little less than 1/2 inch, or about 1 centimeter. Thus a program of exercise such as that mentioned above could result in increasing the thickness of the pectoral muscle to about 2 centimeters (Tr. 44, 46, 47, 65). In Dr. Mourad's opinion, respondent's exercise program, performed for 3 minutes per day using its product, would not contribute to the probability of increasing the thickness of the pectoralis major (Tr. 55). In Dr. Mourad's opinion, respondent's program could not possibly result in increase of the bustline measurement 3 1/2 inches in 14 days or 5 inches in 21 days (Tr. 57).

Additionally, Dr. Mourad testified that the program would not cause a female user's breasts to become rounder, higher, or firmer (Tr. 57).

14. Complainant relied solely on the opinion testimony of medical doctors in an effort to establish the falsity of the representations alleged in the complaint. Respondent countered with the results of an experiment conducted on six women under the supervision and observation of a disinterested and qualified registered nurse, Marsha Ann Bigham, with xerograms made and interpreted by a highly qualified radiologist, Dr. Edward S. Blivens, and the testimony of another medical doctor, Dr. James T. Cooper, specializing in bariatrics (the art and science of weight control) and knowledgeable in the matter of muscle development.

15. The experiment conducted on the six young women covered a period of 14 consecutive days with five of them and 13 days with the other. It involved the taking of profile xerograms of the right and left breasts areas, including the pectoralis major, of each of the six women under the supervision and direction of Dr. Blivens. This was followed by the 14-day program conducted under the supervision and director of Ms. Bigham, an employee of the United States Public Health Service. The daily program involved, in the order mentioned, the taking of the weight of each woman, the measurement of the bustline with breath expelled and inhaled using a specially devised tape measure designed to equalize and make uniform the tension of the tape for each measurement, and finally the performance of the exercises as recommended in the pamphlet accompanying respondent's product for periods averaging between 3 and 4 minutes. The result of this program was that five of the six women experienced increases in bustline measurement ranging from 1/4 inch to 2 inches, the average increase falling between 1/2 inch and 3/4 inch (RX 2-5, 7). One woman experienced a loss of 1/4 inch (RX-6). The woman who experienced the largest increase, one which had the effect of raising the average substantially, had her final measurement taken two days before her menstrual period which may have contributed to an increase in the size of her breasts and, therefore her bustline measurement (Tr. 224).

Based on all the evidence relating thereto, I find that use of respondent's product as recommended in the accompanying instructions will not cause an average increase in the female user's bustline measurements of 3 1/2 inches in 14 days or 5 inches in 21 days.

16. At the conclusion of the portion of the experiment conducted by Ms. Bigham, Dr. Blivens made another set of xerograms of the breasts of each participant, duplicating as nearly as humanly possible the position which each woman had assumed for the initial set. The xerograms clearly delineated the line between the breasts and the pectoralis major and the thickness of the pectoralis major. The xerograms depicted the breast area in life size, or slightly larger (5 to 10%) (Tr. 263). Measurements of the thickness of the pectoralis major were made directly on the xerograms with, according to Dr. Blivens, not to exceed 5 to 10% error. Such measurement made on the "before and after" xerograms revealed an average increase in the thickness of the pectoralis major of approximately 25% or 1.91 mm.

17. Dr. Cooper's testimony may be summarized as consisting of opinions that respondent's product can be of significant help in building the bustline muscles, particularly the pectoralis major; that the thickness of the pectoralis major can be increased in 14 days using respondent's product and program; that such increase in thickness will result in an increase in bustline measurement; that an increase in thickness of the pectoralis major will push the breasts forward with an attendant increase in the apparent size of the breasts and causing the breasts to become rounder, higher, firmer, and esthetically more pleasing (Tr. 286, 287).

18. The women participating in the measurement program were uniformly satisfied with the results they believed they had achieved with respondent's program. They stated variously that they experienced greater fullness, particularly in the area just above the breasts (Tr. 179, 191, 209), that their breasts had become firmer (Tr. 179, 199, 213), that breast contours and shapes had improved (Tr. 199, 221), and that there was an increase in roundness of the breasts (Tr. 191). Most of them expressed the intention of continuing with the program and have recommended it to friends.

19. Respondent's answer admits that it makes the representations alleged in paragraph 3(d) of the complaint, i.e., that the product is a new invention utilizing a principle called "pectoral isolation" which "more or less isolates the bustline areas that most need improving" and which differs substantially from other so-called bust developers. Based on the testimony of complainant's medical experts, Dr. Mourad and Dr. Vincent F. Cordaro, I find that respondent's product and basic principle of operation are not substantially different from many other devices for so-called bust development (Tr. 62, 125, 126) and that the term "pectoral isolation" is not recognized in physical medicine (Tr. 63).

CONCLUSIONS OF LAW

1. Based on the foregoing Findings of Fact, I find that respondent makes the representations alleged in the complaint.

2. Based on the foregoing Findings of Fact, I find that the representations alleged in paragraphs 3(a), 3(b), 3(d) and 3(e) are materially false in fact.

3. Based on the testimony of the participants in the measurement program and the opinion of Dr. Cooper, I find that the average female user of respondent's product may experience some increase in roundness, height and firmness of her breasts. Consequently I do not find the representation alleged in paragraph 3(c) of the complaint to be materially false in fact.

4. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 451 (S.D. N.Y. 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D. N.Y. 1959).

5. The average person reading respondent's advertisements would interpret them substantially as characterized in paragraph 3 of the complaint.

6. Respondent argues that complainant has unfairly singled it out as an alleged violator of 39 U.S.C. 3005 when other entities marketing "bust expanders" in direct competition with it make similar claims in their advertising apparently not deemed objectionable by respondent, the result being, according to respondent's allegations, a selective and discriminatory enforcement of the law in violation of respondent's right to equal protection under the law as guaranteed by the United States Constitution.

As made clear in the decision of the Judicial Officer of the Postal Service in Beauti-Breast of Paris, P.S. Docket No. 1/140 (March 25, 1975) it is not the function of this administrative proceeding to decide whether others might or should properly be made the subject of complaints under 39 U.S.C. 3005; rather, this proceeding is limited to a determination whether the evidence adduced in the course thereof warrants the conclusion that a statutory violation exists. See also the Postal Service decision in Iso-Tensor, et al., P.S. Docket No. 3/30 (May 23, 1975) to the same effect.

7. Respondent argues that 39 U.S.C. 3005 as presently being interpreted, applied, and enforced by complainant violates the due process clause of the Fifth Amendment of the United States Constitution in that respondent has failed to establish any apparent guidelines or standards of liability for application thereof.

The truth or falsity of the representations alleged in complaints filed under 39 U.S.C. 3005 must be decided on the facts presented in each case. It would be virtually impossible to furnish guidelines or standards of liability for application of the statute any clearer, more precise or comprehensive than those which can be discerned from a study of the large body of administrative and judicial decisions in proceedings brought under the statute. Accordingly, this constitutional argument is rejected.

8. The constitutionality of the statute has been upheld against attack under many constitutional provisions including those invoked by respondent. See Hollywood House International, Inc. v. Klassen, 508 F.2d 1276 (1974) and cases cited therein.

9. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mail by means of representations materially false in fact.

10. An order pursuant to 39 U.S.C. 3005 in the form attached should issue.