In the Matter of the Complaint Against

M.K.S. ENTERPRISES, INC. and/or
GROWING GLORY and/or PRO-B-5
50 Bond Street at Westbury,
New York 11590

and

PRO-B-5 DIVISION
210 Fifth Avenue at
New York, New York 10010

P.S. Docket No. 5/121;

06/21/77

Lussier, Edward F.

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

APPEARANCES FOR RESPONDENT:
Charles B. Chernofsky, Esq.
Weiss, Rothfarb & Chernofsky
New York, New York

POSTAL SERVICE DECISION

This case is on appeal by the above-named Respondents from the Initial Decision of Administrative Law Judge Quentin E. Grant. That decision recommended the issuance of a mail-stop order under the provisions of 39 U.S.C. § 3005 based on the findings and conclusion that Respondents were engaged in conducting a scheme or device for obtaining money or property through the use of the mails by means of false representations within the meaning of the cited statute.

The Initial Decision found that the following representations were made by Respondents' advertising and that they were materially false:

a. That the products will cause hair to grow longer;

b. That the products will heal split ends;

c. That the products will cause the user to have long hair such as that of the models pictured in the advertisements. The products involved, identical in composition, are called "Growing Glory" and "Pro-B-5". The respective advertisements for each are attached hereto as Exhibits "A" and "B".

Respondents take exception to the findings and conclusions both as to the representations being made and as to their material falsity. Respondents agree that Judge Grant correctly states the governing law determining advertising representations but contend that this law was misapplied in finding that the advertisements make the representation that the product will cause hair to grow longer. They contend that this is not the impression conveyed to the ordinary reader. In my view Judge Grant's analysis of the advertisements is correct. The general purport conveys this impression quite clearly. Respondents' reorder evidence (RX 3a-h) is totally insufficient to disturb this conclusion. Since, as the Initial Decision points out, Respondents' own witnesses testified that the product will not cause the hair to grow longer, the finding that the representation is materially false is well supported.

Similarly Respondents take exception to the finding that the advertisements make the representation that the user can expect to obtain long hair like the models pictured in the advertisement. However, the most striking aspect of the advertisements is the length of the hair on the models. The picture must be considered an important part of the advertisement and when viewed with the entire context of the advertisement conveys the vivid inescapable impression of cause and effect. There is no question, on the evidence presented, that the product will not produce the result and the finding of material falsity is correct.

With respect to the conclusion that both advertisements make the representation that the product will heal split ends, I find myself in agreement with Respondents that the advertisement for "Pro-B-5" does not, although the advertisement for "Growing Glory" clearly does. I am influenced in reaching this result by the fact that the Initial Decision made the distinction between "repair" and "heal" in dismissing one of the charges in the complaint and by the fact there is a difference in the wording of the two advertisements. Accordingly, the exception is partially allowed to modify the finding to apply only to the "Growing Glory" advertisement. However, Respondents' further contention that the evidence does not support a finding that the product will not "heal" split ends is not convincing and this part of the exception is disallowed.

Finally, Respondents except to the ruling that the mail-stop order be applied to the name M.K.S. Enterprises. It has been shown that this name is used in the false representation scheme and accordingly it is appropriately included. If it develops over a period of time that no mail for this product is being received so addressed, Respondents can file an appropriate motion for modification or revocation of the stop order under 39 CFR § 952.29. In the meantime, any inconvenience must be considered as a product of Respondents' own actions for which it is responsible, and the alleviation of which should not be at the cost of withdrawing the protection to the public which the statute requires.

Respondents' exceptions to the Initial Decision are disallowed and that Decision, except as indicated above, is hereby affirmed. A mail-stop order is being issued contemporaneously with this decision under 39 U.S.C. § 3005.