In the Matter of the Complaint Against

NUTRIENT LABORATORIES, INC.
P. O. Box 80308 at
Chamblee, Georgia 30341 and

P. O. Box 4283 at
New Windsor, New York 12550 and

P. O. Box 81105 at
Atlanta, Georgia 30366 and

P. O. Box 95543 at
Atlanta, Georgia 30347 and

P. O. Box 2511 at
Newburgh, New York 12550

P.S. Docket No. 5/48;

02/01/77

Lussier, Edward F.

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

APPEARANCES FOR RESPONDENT:
Jack Paller, Esq.
Atlanta, Georgia

POSTAL SERVICE DECISION

The Respondent in these proceedings, Nutrient Laboratories, Inc., has taken a timely appeal from the Initial Decision rendered by Administrative Law Judge Quentin E. Grant. Judge Grant's decision found materially false representations in Respondent's sale through the mails of its product "The Skin Vitamin" and recommended the issuance of a mail stop order pursuant to 39 United States Code § 3005. the appeal takes basic exception to the Initial Decision which it phrases in the form of the question "Did the Administrative Law Judge err in concluding that informed medical and scientific opinion supported the charge of material falsity of the alleged claims?"

Respondent's arguments in support of the proposition that the question must be answered in the affirmative are basically the same arguments made to Judge Grant amplified by citations to American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902), and Reilly v. Pinkus, 338 U.S. 269 (1949), to support its contention that the testimony of Complainant's medical experts is mere opinion unsupported by scientific experiments and thus unreliable. For an analysis, unnecessary to repeat here, of the proper breadth of the cited cases, see my decision in SkinnySuit, P.S. Docket No. 3/44 (Feb. 19, 1976). The major difficulty I find with Respondent's appeal, however, is in its factual premise that the government's case must fail because of the imprecision of the table of Recommended Dietary Allowances (RDA) put out by the National Academy of Sciences, Food and Nutrition Board, and because of the testimony of Respondent's expert witness.

The testimony of Complainant's expert witnesses, as Judge Grant's well-written decision made quite clear, related very directly to the actual ingredients contained in "The Skin Vitamin" and the lack of efficacy of those ingredients with respect to the claims made in Respondent's advertising. Representing as it does the current consensus of informed medical opinion, the testimony provides substantive support for the conclusion reached by Judge Grant which is not undermined by the manner in which the RDA is established or by the testimony of Respondent's witness when the record is viewed in its entirety. Accordingly, Respondent's exceptions to the Initial Decision are disallowed, that decision is hereby affirmed and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this decision.