In the Matter of the Complaint Against

MODERN AGE PRODUCTS, INC.
P. O. Box 35 at
Plainview, New York 11803 and
P. O. Box 1357 at
Brookfield, Connecticut 06804 and
2 West 45th Street at
New York, New York 10036 and
P. O. Box 5154 at
FDR Station, New York 10022

P.S. Docket No. 5/102;

06/29/77

Lussier, Edward F.

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

APPEARANCES FOR RESPONDENT:
Robert Ullman, Esq.
Bass, Ullman & Lustigman
New York, New York

POSTAL SERVICE DECISION

This matter is on appeal from the Initial Decision of Administrative Law Judge Quentin E. Grant recommending the issuance of a mail stop order under the provisions of 39 United States Code § 3005. Respondent has filed an Appeal Brief setting forth its exceptions to the Initial Decision and Complainant has filed a Reply Brief. Complainant has also filed a motion to amend its Complaint to add two addresses. The first of these, at 2 West 45th Street, New York, N.Y. 10036 was omitted by oversight. It appears on the vertical edge of the advertisement which was attached as Exhibit A to the Complaint, as an address the reader should write to if the coupon made a part of the advertisement was removed. The second address, P. O. Box 5154, FDR Station, N.Y. 10022 Complainant alleges came to its attention after the hearing. The advertisement is identical to Exhibit A to the Complaint except for the mailing address. Although Respondent was served with a copy of the motion to amend on May 31, 1977 and although it filed a supplemental memorandum under date of June 2, 1977, docketed June 6, 1977, taking issue with a particular aspect of Complainant's Reply Brief it has filed no response to the motion to amend the Complaint. That being so and it also appearing that the motion to amend is well founded the motion is granted.

Respondent's appeal brief lists five exceptions which it summarizes as follows:

"1. Respondent excepts to the Administrative Law Judge's reliance upon the 'consensus' testimony of Dr. Cordaro as the basis of finding that the representations in Respondent's advertising are materially false (I.D. p. 13, 14).

"2. Respondent excepts to the Administrative Law Judge's conclusion that the representations in Paragraphs III (a), (b), (d) and (e) are false (I.D. pp. 13, 15, 16).

"3. Respondent excepts to the Administrative Law Judge's finding and conclusion regarding 'skepticism' on the part of Dr. Richards as to permanence of the effects of the Chartham Method (I.D. pp. 10, 14).

"4. Respondent excepts to the Administrative Law Judge's conclusion that the opinions of Dr. Richards, insofar as they conflict with those of Dr. Cordaro, were not supported by substantial evidence (I.D. p. 16).

"5. Respondent excepts to the conclusion of the Administrative Law Judge that an order pursuant to 39 U.S.C. § 3005 should issue against Respondent (I.D. p. 16)."

As can be seen exceptions 2 and 5 are exceptions to the ultimate conclusions and exceptions 1, 3 and 4 go to certain elements of proof. Respondent's arguments in support of its exceptions are broken down more broadly into three subheadings as follows:

"Point I - The Administrative Law Judge's Reliance Upon The

'Consensus' Testimony Of Dr. Cordaro Regarding The

Chartham Method Was Misplaced And Erroneous As A

Matter Of Law.....................................

"Point II - The Record Herein Fails To Support By Substantial

Evidence The Alleged Material Falsity Of The

Representations Set Forth In Paragraph III (a) And

(b) Of The Complaint Regarding The Chartham

Method............................................

"Point III - The Record Herein Fails To Support By Substantial

Evidence The Alleged Material Falsity Of The

Representations Set Forth In Paragraph III (d)

and (e) Of The Complaint Regarding Dr. Richard's

Ring..."

The exception to the reliance upon the consensus testimony of Complainant's medical witness, Dr. Cordaro, attacks first the concept that a consensus can exist at all because the only tests conducted on Respondent's product, "The Chartham Method" were conducted by its medical witness, Dr. Richards. This reasoning not only distorts the consensus of medical opinion upon which the decision rests but would require the rejection of any medical consensus on the theory that it might later be revised as science advances. Likewise, the fact that Respondent's method is different than other methods does not disturb the medical consensus that the results promised are not possible since the size of the male sex organ is genetically determined.

Respondent also contends that Judge Grant did not accurately reflect Dr. Richards' testimony in finding that he did not dispute the consensus (I.D., p. 13; Tr. 148) and that he expressed "scientific skepticism" as to the permanent results (I.D., pp. 10, 14; Tr. 208, 211). As I view the testimony it supports the findings although I do not find either critical to the ultimate conclusions reached.

The essence of Respondent's exceptions to the Initial Decision is that Complainant has not carried its burden of proving the material falsity of the representations. It is obvious to me that Judge Grant gave careful consideration to the entire record. I have reviewed that record and considered the arguments with respect to the evidence. I am in agreement that the representations found by Judge Grant to be materially false are shown by the record to be in fact materially false.

Respondent's exceptions to the Initial Decision are disallowed and that Decision is hereby affirmed. A remedial mail stop order under the provisions of 39 U.S.C. § 3005 will accordingly be issued forthwith.